Does your child need their own lawyer? What you need to know
By David Kim, Calgary Family Lawyer
If you and your ex-partner are having disagreements over the parenting arrangements for your child, or if you feel the current arrangements are simply not working, one party may end up making an application to the court to appoint a lawyer (or “counsel”) for the child so that their views are taken seriously. But will the court application be worth it? What are your chances of success? Also, who pays for the child’s counsel?
Why do children need counsel?
In family law, children are given special consideration because of their vulnerable status and the courts have certain obligations to protect them.
Article 12 of the United Nations Convention of the Rights of the Child states that children shall be provided the opportunity to be heard in any judicial proceedings affecting the child, either directly or indirectly, through a representative or an appropriate body in a manner consistent with the procedural rules of national law.
In Alberta, the recent case of DCE v. DE, 2021 ABQB 909 clarified that there is no clear rule for when a child’s counsel should be appointed and that it will depend on the circumstances. In DCE, the mother and father were in a high conflict parenting dispute and the father made an application to appoint counsel for the children. The father believed that the children were not being adequately cared for by the mother who had primary care of them. He alleged the children had rashes, smelled foul, and were generally unkempt whilst in the mother’s care. Additionally, the father alleged that the mother had unidentified male friends who often slept in the children’s rooms. Furthermore, the father had a strong belief that the children wished to spend more time with him but that these wishes were not being accommodated by the mother.
In considering the father’s application, the court applied the legal test to determine whether appointing child’s counsel was appropriate: is appointing child’s counsel in the best interest of the child?
Applying the Best Interests of the Child Test
- As a starting point, it is presumed that a child capable of forming views is entitled to express those views freely in all matters affecting the child, with those views being given due weight in accordance with the child's age and maturity.
- The issues raised by the parties (and potentially affecting the child) should be identified and the court may review, on a preliminary basis, the extent to which the child's interests are engaged.
- The court must determine if the child has attained an "age and degree of maturity" such that the child's views should be considered. There is no specific age that is a threshold for appointing counsel since determining the appropriate age is individualized and contextual. The court recognizes, however, that as the child enters into their teen years, greater assumptions can be made about their maturity.
- The specific purpose of the appointment and how the child will participate in the process should be explained by identifying the proposed role of child’s counsel. Historically, there are three different “types” of child’s counsel:
i. Friend of the Court (or “Amicus curiae”): counsel takes instructions from the court and may assist by investigating facts, often with the assistance of a psychologist or social worker and may question witnesses at a hearing. The lawyer ensures that all relevant evidence is tendered before the court. The focus is on ensuring that all realistic options for the child's care are investigated. The lawyer maintains neutrality and need not inform the court of the child's views and is not expected to make submissions about the outcome or resolution that best serves the child's interests. Information provided by the child to legal counsel is not confidential and may be shared with the Court.
ii. Best Interests Guardian: modifies the friend of the court function by allowing the lawyer to advocate a position based on their assessment of the child's best interests. The lawyer acts much like a litigation guardian, assessing the best interests of the child and making recommendations to the court. The lawyer is not bound by the child's views, but usually informs the court of what they are.
iii. Direct Advocate: a conventional lawyer-client relationship in which counsel communicates the child's views to the court and seeks to advance the child's objectives. The lawyer advises the child about choices, maintains confidentiality, and advances the child's instructions.
If a direct advocate role is contemplated, the court may consider whether the child is capable of instructing counsel. - The nature of the information to be collected from the child should be identified (ex. facts, evidence, opinion, preference, or choice).
- The court may explore whether counsel for the child is necessary or desirable, rather than relying on another means to hear from the child.
- The court may take into account offsetting factors such as the negative impact of involving the child in the litigation process, the parties' ability to pay, the likely evidentiary value of the child's information or abuse of process.
In DCE, the father’s application was ultimately dismissed because he failed to establish enough evidence to support his allegations and the children did not appear to want changes to the current parenting schedule. Also, the children were not deemed to be of ages of maturity to form views about parenting time. Altogether, it was held that appointing child’s counsel was not in the best interest of the children.
When will the court appoint child’s counsel?
In the case of Puszczak v. Puszczak, 2005 ABCA 426 the Alberta Court of Appeal outlined a non-exhaustive list of circumstances where child’s counsel might be appointed:
- cases involving allegations of child abuse
- cases where an apparently intractable conflict exists between the parents
- cases where the child is seemingly alienated from one or both parents
- where real issues arise about cultural or religious differences affecting the child
- where the sexual preferences of either or both the parents or some other person having significant contact with the child are likely to impinge on the child's welfare
- where the conduct of either or both parents or some other person having significant contact with the child is alleged to be anti-social to the extent that the child's welfare is seriously impinged
- where issues arise about significant medical, psychiatric, or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the child
- any case in which, on the material filed by the parents, neither seems a suitable guardian
- any case in which a child of mature years is expressing strong views, which if given effect would involve changing a longstanding custodial arrangement or a complete denial of access to one parent
- where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently moved to a place within the jurisdiction that would greatly restrict, or for all practical purposes, exclude the other party from access to the child
- cases proposing to separate siblings
- custody cases where none of the parties is legally represented
- medical treatment of children where the child's interests are not properly represented by one of the parties.
Ultimately, making a court application to appoint child’s counsel is a complex and nuanced matter and should not be taken lightly. The argument for child’s counsel in any given case is not always clear. If you believe it might be necessary to appoint counsel for your child, our experienced team at Crossroads Law is standing by to advise and assist you with this. Book a free 20-minute consultation today.
